2.12 The Disclosure of Police Misconduct Information - R v McNeil

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Revised April 4, 2018

Table of contents

1. Introduction

The Supreme Court of Canada’s decision in R v McNeilFootnote 1 expanded the scope of disclosure in criminal cases by imposing obligations on both the police and Crown prosecutorsFootnote 2. These obligations “bridge the gap” between first party disclosure under StinchcombeFootnote 3 and third party production under O’ConnorFootnote 4.

This directive provides guidance to federal prosecutors to assist them in fulfilling these obligations and ensuring that our disclosure practice is consistent across the Public Prosecution Service of Canada (PPSC). These guidelines also inform the advice that federal prosecutors provide to the police and other law enforcement agencies on the content of McNeil first party disclosure packages and “reasonable inquiry” letters to third parties.

2. Summary of R v McNeil

The Court in McNeil found that the police and other investigating agencies must disclose to the prosecuting Crown, as first party disclosure material, findings of serious misconduct by police officers involved in the investigation of the accused. This information may be relevant to their credibility and reliability. Not all such information will necessarily be given to the defence. Crown counsel must perform a gatekeeper role in reviewing this material and withholding or redacting information that is irrelevant or privileged. The gatekeeper function requires that the Crown conduct a “studied analysis” to determine relevance. In the end, if the material has no realistic bearing on the credibility or reliability of the person involved in the investigation, it should not be disclosed to the defence. In addition, where a prosecutor is put on notice or informed of the existence of information potentially relevant to an accused’s case that is held by a Crown entity (or other third party), the prosecutor has a duty to inquire and obtain the information if it is reasonably feasible to do so. The Court recognized that the Crown is not obliged to make such inquiries if the notice appears unfounded. Moreover, defence still retains the ability to seek the information via an O’Connor application.

3. Disclosure of Misconduct Information

The disclosures obligations apply to police members and civilian members of a police force or law enforcement agency, such as translators, forensic analysts and wiretap monitors, in addition to any other civilian employees who played more than a peripheral role in the investigation. Information concerning acts of serious misconduct by police officers who may be called as witnesses or who were otherwise involved in the investigation of the accusedFootnote 5 that is either “related to the investigation against the accused” or could “reasonably impact” on the case against the accused has been carved out of O’Connor and placed squarely in the first party disclosure package under Stinchcombe. Thus, misconduct information that falls into either of these two categories must be provided to the Crown by the police without prompting.

The Supreme Court of Canada recognized that some police officers may have played only a minor or peripheral role in the investigation. Some latitude is given to Crown counsel in determining whether the conduct in question has a realistic bearing on the credibility or reliability of the officer’s evidence. The Supreme Court also stated that not every act or allegation of misconduct needs to be disclosed to defence as first party disclosureFootnote 6, e.g., discipline imposed for being late for work. Similar disciplinary findings related to neglect of health, improper dress, and untidiness in person, clothing or equipment while on duty need not be disclosed to the Crown.

It is the responsibility of the Crown to review the misconduct material to determine what, if anything, should be disclosed to the accusedFootnote 7. This review includes an assessment of whether the material is clearly irrelevant, whether any vetting is needed to remove personal information, and whether there is privileged or third party information to be held back. The Crown has an obligation to notify the accused if they are holding back privileged information or information in which there is a third party privacy interest. If material received from the police is “clearly irrelevant” it does not need to be disclosed to the defence.

(a) The Contents of the McNeil Disclosure Package

A listing of police misconduct information for all police officers involved in the file should be sent automatically to the Crown who will then determine whether the witness or officer otherwise involved in the investigation is truly a peripheral player. The police should indicate on the form whether they object to the disclosure of any misconduct information included in the list, and, if so, on what grounds.

In addition to the above-mentioned information, the police should provide the Crown with the following information pertaining to each police officer who may be called as a witness or who was otherwise involved in the investigation except those officers who have played a truly peripheral role in the investigation as determined by the Crown:

  1. Complaints and investigations into a police officer’s actions relating to the same incident that forms the subject matter of the charge against the accused. (The police should provide the Crown with a copy of the investigation file for this particular category of misconduct information);
  2. A list of convictions or findings of guilt for an offence under the Criminal Code or the Controlled Drugs and Substances Act for which a pardon has not been granted (Canadian Police Information Centre (CPIC) record);
  3. A list of all outstanding charges under the Criminal Code and the Controlled Drugs and Substances Act;
  4. A list of all convictions or findings of guilt under any other federal or provincial statute (with the exception of convictions or findings of guilt for minor traffic infractions or other minor regulatory offences), including those under the applicable provincial Police Act or the Royal Canadian Mounted Police ActFootnote 8, for which a pardon has not been granted;
  5. A list of outstanding charges of misconduct under the applicable provincial Police Act or the Royal Canadian Mounted Police Act, and
  6. Any other material that is “obviously relevant” to the credibility or reliability of the police witness should be submitted to the Crown for review and vetting to determine if it is relevant to the issues in the prosecution or defence of the accused.

McNeil does not draw a distinction between a finding of misconduct and records related to the finding of misconduct. We recommend that the police should initially be required to provide Crown prosecutors with a list of convictions, findings of guilt, and outstanding charges described above without prompting. The prosecutor must then assess whether further particulars, including, where necessary, the entire file underlying the investigation of acts of police misconduct must be produced to the Crown.

With respect to the categories of police misconduct described in 2 to 6 above, if the prosecuting Crown is of the opinion that the circumstances underlying the misconduct information are required to assist in performing their gatekeeper role (see below) he or she should make a separate request for this additional information.

Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package as enumerated above is governed by the O’Connor regime for third party productionFootnote 9.

(b) The Crown’s Gatekeeper Role

The McNeil Court emphasized that the Crown has a significant role to play as “gatekeeper” with respect to disclosure of police misconduct informationFootnote 10. Prosecutors have an obligation to review misconduct material prior to disclosure to the accused. This role does not involve a wholesale turning over of material provided by the police but rather a “studied analysis” to determine if it is relevant to the defenceFootnote 11.

It is the Crown’s responsibility as gatekeeper to determine which police officers played peripheral roles. For example, an officer who would be called to testify at trial or preliminary hearing, or who would testify absent an admission from defence, is not a peripheral player. The Crown must also make a judgment call as to whether a particular type of misconduct qualifies as serious, taking into account, inter alia, the circumstances of the misconduct, the date of the misconduct, its impact on the reliability or credibility of the officer, and the subject matter of the current charges against the accused.

The Crown should review the material in the McNeil Packages to determine if any of the information received is clearly irrelevant to the prosecution or the defence. If the material has no realistic bearing on the credibility or reliability of the witness it should not be disclosed to the defence. The Crown should also review all the material forwarded by the police in McNeil Packages to determine if any material is privileged at common law or statute. Privileged material should not be disclosed.

An investigative file of police misconduct findings or convictions containing some relevant information will also likely contain irrelevant and personal information. The Court in McNeil acknowledged the concern that irrelevant disclosure may lead to protracted trials. Therefore, the Crown should review disclosure with an eye to editing all irrelevant information and to placing restrictions on disclosure so that the interference with third party privacy interests is minimized. This may require consultation with the third parties to assess privacy interestsFootnote 12. The Court in McNeil recognized that police officers may “make submissions”Footnote 13 to the Crown, relating to factual matters to assist the Crown in identifying information in which the officer has a privacy interest, in advising the Crown of the basis of the privacy interest and in discussing what disclosure restrictions may address that privacy interest.

4. Crown Counsel’s Duty to Make Reasonable Inquiries

The Court appears to indicate, in McNeil, that the Crown's obligation to make inquiries of third parties was intended to extend to all third parties. When making reasonable inquiries of third parties, the appropriate threshold for relevance is potentially relevant information, including information pertaining to the credibility or reliability of the witnesses in a caseFootnote 14.

If the Crown is put on notice or informed of the existence of potentially relevant information in the hands of a third party, including information pertaining to the credibility or reliability of the witnesses in a case, the Crown’s duty to make reasonable inquiries of that third party is triggered. In terms of what constitutes being “put on notice” or “informed,” the Crown could either be informed by the investigating agency of the existence of potentially relevant information in the possession of a third party, or could become aware of such information from another source (such as from a review of the Crown brief), or the likelihood of the existence of such information may be apparent from the circumstances of the case. Alternatively, it could come to the Crown’s attention that a third party was “involved in the investigation.” McNeil appears to equate the “involvement” of a third party in the investigation with the reasonable likelihood that the involved third party would as a consequence possess potentially relevant evidence. With respect to the interpretation of the phrase “involved in the investigation,” the Crown should satisfy itself that the third party participated in the investigation in some meaningful manner or had some meaningful nexus to the investigation, which would be assessed by the Crown on a case-by-case basis.

A bare request for third party materials from defence counsel, without giving any basis for the existence of those materials, does not suffice as “notice.” McNeil provides some guidance as to when the Crown’s duty to make reasonable inquiries would not be triggered – see paragraph 49: “[u]nless the notice appears unfounded….” The language used in R v ChaplinFootnote 15 (which was re-stated in McNeil at paragraph 29) in discussing where the existence of material which is alleged to be relevant by the defence is disputed by the Crown, may be helpful in further circumscribing the Crown’s obligation:

[…] Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the non-disclosure of material the existence of which it is unaware or denies. Before anything further is required of the Crown, therefore, the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant. Relevance means that there is a reasonable possibility of being useful to the accused in making full answer and defence. The existence of the disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that it may meet the test with respect to material which the Crown is obliged to produce […].”

And further at paragraph 32:

“Apart from its practical necessity in advancing the debate to which I refer above, the requirement that the defence provide a basis for its demand for further production serves to preclude speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming disclosure requests.”

The reasonable inquiry of a third party should be made directly to the third party by the Crown, with a copy to police. It should also be put in writing to create a record of the Crown’s exercise of its duty to inquire, as it may be the subject of review by a court at some later date. The Crown, should, of course, refrain from giving any legal advice when communicating with third parties. The Crown’s reasonable inquiry function should not be delegated to the investigating agency. Since a less-than-diligent exercise of the Crown’s obligation to make reasonable inquiries of third parties may constitute an ethical breach by the Crown, it is essential that the Crown maintain control over the reasonable inquiry process.

Since the police are in a better position than the Crown to receive and process evidence, the third parties should be instructed by the Crown in the reasonable inquiry letter to provide any potentially relevant evidence directly to the investigating agency. Any handling of the third party evidence should be left to the investigating agency in order to avoid the possibility of the Crown as a witness in the proceedings. In the event that the third party objects to the production of the potentially relevant evidence, the Crown should advise defence counsel of the objection. The accused then has the option to pursue an O’Connor application.

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